Citation Nr: 0528635
Decision Date: 10/25/05 Archive Date: 11/01/05
DOCKET NO. 94-23 279 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for Reiter's syndrome.
2. Entitlement to service connection for depression.
3. Whether new and material evidence has been received to
reopen a previously denied claim of entitlement to service
connection for a bilateral foot disorder.
4. Whether new and material evidence has been received to
reopen a previously denied claim of entitlement to service
connection for a back disorder.
REPRESENTATION
Appellant represented by: Jewish War Veterans of the
United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from January 1966 to
December 1968.
This appeal originally came before the Board of Veterans'
Appeals (Board) from a June 1992 rating action of the Los
Angeles, California, Department of Veterans Affairs (VA)
Regional Office (RO), that had denied the veteran's claims of
entitlement to service connection for Reiter's syndrome,
depression, and allergic rhinitis, and had also determined
that the requisite new and material evidence had not been
submitted to reopen prior final denials of the veteran's
claims for service connection for a bilateral foot disorder
and a back disorder.
In June 1997, the Board remanded the case to the RO for the
purpose of scheduling the veteran for a hearing before a
member of the Board. In September 1997, a hearing was held
at the RO before the undersigned Veterans Law Judge. In
February 1998, the case was again remanded for additional
development.
Subsequently, a January 2004 rating decision granted the
veteran's claim for service connection for rhinitis and
denied his claim for service connection for fibromyalgia. No
notice of disagreement with that decision is of record.
The issue of entitlement to service connection for a back
disorder is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran does not currently have Reiter's syndrome.
3. The veteran was not treated in service for depression,
and his current diagnosis of depression is not related to
service.
4. A final December 1970 Board decision denied the veteran's
claim for service connection for bilateral pes planus; the
basis for the denial was that there was no competent evidence
to demonstrate that the veteran's pre-existing pes planus
underwent an increase in disability beyond the natural
progress of the disease during his period of active duty
service.
5. The evidence received since the December 1970 Board
decision is cumulative of evidence of record considered in
that decision; it does not bear directly and substantially
upon the specific matters under consideration; and it is not
so significant that it must be considered in order to fairly
decide the merits of the claim.
6. A May 1969 rating decision denied service connection for
a back disorder on the basis that there was no current back
pathology shown in the record; the veteran did not file a
timely appeal with respect to that issue.
7. The evidence received since the May 1969 rating decision
consisting of medical records showing diagnoses of arthritis
and degenerative disc disease of the lumbosacral spine bears
directly and substantially upon the specific matters under
consideration, and it is so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. Reiter's syndrome was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. § 3.303 (2004).
2. Depression was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.303 (2004).
3. The December 1970 Board decision is final; the veteran
has not submitted new and material evidence since the
December 1970 Board decision denying his claim of entitlement
to service connection for bilateral pes planus, and thus the
claim is not reopened. 38 U.S.C. § 4004(b) (1964); 38 C.F.R.
§ 19.104 (1970) currently 38 U.S.C.A. §§ 5108, 7104 (West
2002); 38 C.F.R. §§ 3.104, 3.156 (prior to August 29, 2001),
3.306, 20.302(a), 20.1100 (2004).
4 The May 1969 rating decision that denied the veteran's
claim for service connection for a back disorder is final.
38 U.S.C.A. § 4005 (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153
(1969); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (2004).
5. Evidence received since the May 1969 rating decision that
denied service connection for a back disorder is new and
material, and the appellant's claim for that benefit is
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes
obligations on VA in terms of its duty to notify and assist
claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II), the United States Court of
Appeals for Veterans Claims (Court) held that VA must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) request that the claimant provide any
evidence in his possession that pertains to the claim.
The Board finds that the VCAA notice requirements have been
satisfied by virtue of letters sent to the veteran in March
2003 and November 2004. Since these letters fully provided
notice of elements (1), (2), and (3), see above, it is not
necessary for the Board to provide extensive reasons and
bases as to how VA has complied with the VCAA's notice
requirements. Mayfield v. Nicholson, 19 Vet. App. 103
(2005). The veteran was notified in the March 1994 statement
of the case (SOC) and March January 2004 supplemental
statement of the case (SSOC) of the laws and regulations
pertaining to his claims. This was sufficient for
notification of the information and evidence necessary to
substantiate the claims, and the veteran has been adequately
informed as to the type of evidence that would help
substantiate his claims.
Finally, with respect to element (4), the Board notes that
the RO's November 2004 letter contained a specific request
that the veteran send any evidence to VA in his possession
that pertains to the claims. There is no allegation from the
veteran that he has any pertinent records in his possession
that have not been obtained by VA.
The Board is mindful that in concluding that the VCAA notice
requirements are satisfied, it has relied on communications
other than the formal VCAA notice letters to the veteran. At
bottom, what the VCAA seeks to achieve is to give the veteran
notice of the elements outlined above. Once that has been
done, irrespective of whether it has been done by way of a
single notice letter, or via more than one communication, the
essential purposes of the VCAA have been satisfied. Here,
the Board finds that because each of the four content
requirements of a VCAA notice has been met, any error in not
providing a single notice to the veteran covering all content
requirements was harmless. See, e.g., 38 C.F.R. § 20.1102
(2004); Mayfield, supra.
The Board also finds that any defect with respect to the
timing of the VCAA notice was harmless error. See Mayfield
supra. While the notice could not be given prior to the
initial adjudication of the claims currently on appeal, which
predated the enactment of VCAA, the veteran subsequently
received content- complying notice and proper VA process as
described above.
Upon receipt of a substantially complete application for
benefits, VA will also make reasonable efforts to help a
claimant obtain evidence necessary to substantiate the claim.
See 38 C.F.R. § 3.159(c) (2004).
The veteran underwent a VA examination in June 2001.
Extensive VA and private medical records, and records from
the Social Security Administration, have been obtained. The
veteran has not identified other pertinent records that have
not been obtained.
Accordingly, the Board finds that VA has satisfied its duty
to notify and to assist pursuant to the VCAA. See 38
U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. §
3.159 (2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004)
(Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183
(2002).
For service connection to be granted, the law requires that
there be a disability and that the disability result from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
Regulations provide that service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d) (2004).
Reiter's Syndrome
The veteran contends that he currently suffers from Reiter's
syndrome, which he believes has been present since his period
of active service.
Service medical records are silent for complaints, treatment
or diagnosis referable to Reiter's syndrome. His service
separation examination in December 1968 noted normal
musculoskeletal, ophthalmological, and genitourinary
examinations.
A VA orthopedic examination in April 1970 did not note
Reiter's syndrome.
An October 1974 VA hospitalization report noted that the
veteran developed urethral discharge in June 1974, and later
developed conjunctivitis and arthritis. The diagnosis was
polyarthralgia- probable Reiter's syndrome.
A December 1976 private hospitalization report noted a
diagnosis of post-Reiter's syndrome. The report noted that
the rheumatology service felt that the veteran had a
fibrositis syndrome and recommended psychological testing.
A February 1990 outpatient record noted a diagnosis of
fibrositis, originally thought to be Reiter's syndrome.
A private psychiatric hospitalization report dated in May
1993 noted that the examiner suspected that the veteran's
complaints of chronic pain were secondary to his psychiatric
problems.
A June 1998 statement from H.E.W., M.D., an Internal Medicine
and Rheumatology specialist, noted that the veteran had first
been seen in rheumatology consultation in May 1995. It was
Dr. W.'s initial impression that the veteran had "classical
Reiter's disease." Dr. W. went on to state:
He was treated with large doses of
azulfidine but he showed no improvement.
He was then given methotrexate in
addition and he again showed no change in
his symptoms. For that reason he was
taken off these medications with no real
change in symptomatology. This
unresponsiveness to these remitting
agents is of concern to me and makes me
suspicious whether he has Reiter's
disease.
The record contains numerous VA treatment reports that
include a notation of history of Reiter's syndrome, however,
none of these records include any diagnostic or clinical test
findings supporting that diagnosis.
A VA Internal Medicine examination of the veteran was
conducted in June 2001. The examiner reviewed the veteran's
claims folder in conjunction with the examination. The
diagnosis was chronic pain syndrome. The examiner stated
that:
He gives a history of Reiter's syndrome
but I do not appreciate any sign of an
active inflammatory disorder such as
Reiter's syndrome on my examination today.
He simply has diffuse soft tissue pain. I
appreciate no swelling, erythema, or
warmth. In reviewing the records, I do
not see any documented information that
would lead one to believe that this
veteran ever had an inflammatory disorder
such as Reiter's syndrome....I cannot state
based upon the information before me that
the veteran ever had Reiter's syndrome. I
do feel at this time that his current
medical problems are not associated with
Reiter's syndrome.
The veteran's claim for service connection for Reiter's
syndrome fails because the evidence does not show that the
veteran currently has Reiter's syndrome. While there is some
evidence of a diagnosis of Reiter's syndrome in the mid-
1970s, the preponderance of the evidence reveals that there
is no present disability. The June 1998 private physician's
statement expressed doubt that the veteran had Reiter's
syndrome. Most significantly, the VA examination report
dated in 2001 clearly stated that the veteran does not
currently have Reiter's syndrome nor is it likely that he
ever had it. For these reasons, the preponderance of the
medical evidence is against a finding that the veteran
currently has Reiter's syndrome. Without evidence showing
that a disability is present, service connection is not
warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
While the Board acknowledges the contentions of the veteran
that he currently has Reiter's syndrome, he is not competent
diagnose any current medical disorder. This is so because
the appellant is a lay person and is therefore not competent
to offer an opinion requiring medical knowledge. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). As the preponderance of
the evidence is against the claim, the benefit-of-the-doubt
rule is inapplicable, and the claim must be denied. 38
U.S.C.A. § 5107(b) (West 2002).
Depression
The veteran contends that he currently suffers from
depression, which he believes has been present since his
period of active service.
Service medical records are silent for complaints, treatment
or diagnosis referable to a psychiatric disorder. On the
report of medical history completed by the veteran at the
time of his service separation in December 1968, he checked
"no" in response to whether he ever had ever had or had now
any depression or excessive worry. His service separation
examination in December 1968 noted normal psychiatric
examination.
In November 1990, the veteran was seen at a VA outpatient
clinic claiming depression related to "the pain I've been
living with for 16 years." The diagnosis was dysthymia. In
December 1990 a mental health examination report found a
diagnosis of dysthymic disorder related to the veteran's
reported history of Reiter's syndrome.
In May 1993, the veteran was hospitalized in a private
facility with complaints of wanting to kill himself due to
pain, which he reported had been present since the age of 28.
Psychological testing found a severe form of chronic
endogenous depression associated most likely with an
underlying personality disorder.
The diagnosis was major depressive disorder, severe and
recurrent, and mixed passive dependent-passive aggressive
personality disorder.
A psychiatric evaluation conducted in June 1997 in
conjunction with the veteran's Social Security Administration
disability benefits noted a diagnosis of major depression,
moderate.
In a letter dated in April 1998, E.G., M.F.C.C., a therapist
who has treated the veteran for depression since 1994, noted
that the veteran had told her that he experienced emotional
problems from the time of his discharge from service.
The veteran was not treated in service for depression. While
he has submitted letters that he sent to his family during
his period of active duty that allude to his unhappiness in
service, a diagnosis of depression is not noted until 1990,
many years after service separation. In fact, the veteran's
own statements to examiners in the early 1990s attributed his
feelings of depression to his ongoing physical problems which
dated from the mid-1970s, nearly a decade following his
separation from service. In addition, there is no medical
opinion linking the current findings to military service.
While there is a current disability, absent a showing of
inservice treatment and a link between service and the
current findings, service connection must be denied.
The Board declines to obtain a medical nexus opinion with
respect to the veteran's claim of entitlement to service
connection for depression because there is no objective
evidence indicating that there is a relationship between the
veteran's depression and his military service. Thus, while
there is a current diagnosis of major depression, there is no
true indication that it is related to service. See Charles
v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the
absence of any mention of depression on the service
separation examination or any mention of pertinent disability
in medical records for more than two decades following
service, any opinion relating the current depression to
service would be speculative. However, service connection
may not be based on a resort to pure speculation or even
remote possibility. See 38 C.F.R. § 3.102 (2004). The duty
to assist is not invoked, even under Charles, where "no
reasonable possibility exists that such assistance would aid
in substantiating the claim." 38 USCA 5103A(a)(2).
While the Board acknowledges the contentions of the veteran
that his currently diagnosed depressive disorder is related
to his period of active duty, that is a medical question that
requires special medical knowledge that he as a lay person
does not possess. Espiritu, supra. As the preponderance of
the evidence is against the claim, the benefit-of-the-doubt
rule is inapplicable, and the claim must be denied. 38
U.S.C.A. § 5107(b) (West 2002).
Foot Disorder- New and Material Evidence
A pre-existing injury or disease will be considered to have
been aggravated by service where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. §§ 1111, 1153 (West
2002); 38 C.F.R. §§ 3.303, 3.306 (2004). Clear and
unmistakable evidence (obvious or manifest) is required to
rebut the presumption of aggravation where the pre-service
disability underwent an increase in severity during service.
This includes medical facts and principles which may be
considered to determine whether the increase is due to the
natural progress of the condition. Aggravation may not be
conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during, and subsequent to service. 38 C.F.R. §
3.306(b) (2004).
In a final December 1970 decision, the Board denied the
veteran's claim for service connection for bilateral pes
planus. The basis for the denial was that there was no
competent evidence to demonstrate that the veteran's pre-
existing pes planus underwent an increase in disability
beyond the natural progress of the disease during his period
of active duty service. 38 U.S.C. § 4004(b) (1964); 38
C.F.R. § 19.104 (1970) currently 38 U.S.C.A. §§ 5108, 7104
(West 2002); 38 C.F.R. § 20.1100 (2004).
Since the December 1970 Board decision is final, the
veteran's current claim of service connection for a foot
disorder, claimed as pes planus, may be considered on the
merits only if new and material evidence has been received
since the time of the prior adjudication. See 38 U.S.C.A. §§
5108, 7104 (West 2002); 38 C.F.R. § 3.156; Barnett v. Brown,
83 F.3d 1380, 1383 (Fed. Cir. 1996).
The regulation regarding new and material evidence was
amended. 38 C.F.R. § 3.156(a) (2004). This amendment
applies only to claims to reopen a finally decided claim
received on or after August 29, 2001. The veteran's request
to reopen his claim of entitlement to service connection was
filed prior to that date, in August 1991. Therefore, the
amended regulation does not apply.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In
determining whether evidence is new and material, the
credibility of the new evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim.
Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the
specified bases for the final disallowance that must be
considered in determining whether the newly submitted
evidence is probative. Id. Such evidence must tend to prove
the merits of the claim as to each essential element that was
a specified basis for that last final disallowance of the
claim. Id.
The evidence of record at the time of the Board's denial of
the veteran's claim in 1970 showed that the veteran's pre-
enlistment physical examination noted pes planus, bilateral,
third degree, asymptomatic; that he was treated on several
occasions during service for foot pain and flat feet; that
his service separation examination noted asymptomatic pes
planus; that he received post-service treatment for sore feet
in 1969; and that a VA examination in April 1970 noted
minimal bilateral pes planus. Based on this record, the
Board concluded in its December 1970 decision that the
evidence did not demonstrate that the veteran's pre-existing
pes planus underwent an increase in disability beyond the
natural progress of the disease during his period of active
duty service. In order to reopen his claim, the veteran
would have to submit competent evidence suggesting his pre-
existing pes planus underwent an increase in disability
beyond the natural progress of the disease during his period
of active duty service.
Non-duplicative evidence received since December 1970
consists of recent VA outpatient records showing treatment
for chronic diffuse bilateral foot pain of uncertain
etiology. These records do not constitute competent evidence
that pre-existing pes planus underwent an increase in
disability beyond the natural progress of the disease during
his period of active duty service. Thus, they are not
material to the matter at hand. Similarly, the veteran's own
hearing testimony and written statements in support of his
claim to reopen are essentially cumulative of evidence of
record in 1970. They support previously established facts
that the veteran was treated for foot pain and flat feet in
service but do not include competent evidence that pre-
existing pes planus underwent an increase in disability
beyond the natural progress of the disease during his period
of active duty service. This additional evidence is not
material to the matter at hand.
Since the evidence received since the December 1970 Board
decision is cumulative of evidence of record considered in
that decision, it does not bear directly and substantially
upon the specific matters under consideration, and it is not
so significant that it must be considered in order to fairly
decide the merits of the claim, the veteran's attempt to
reopen his claim for service connection for a foot disorder,
claimed as pes planus, must fail.
Back Disorder-New and Material Evidence
A May 1969 rating decision denied the veteran's claim for
service connection for a back disorder. After appropriate
notice, the veteran did not file a timely appeal with respect
to that issue, and the decision became final. 38 U.S.C.A. §
4005 (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969).
The basis for the previous denial was that there was no
competent evidence of post-service back pathology. Since the
May 1969 rating decision is final, the veteran's current
claim of entitlement to service connection for a back
disorder may be considered on the merits only if new and
material evidence has been received since the time of the
prior adjudication. See 38 U.S.C.A. §§ 5108, 7104 (West
2002); 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380,
1383 (Fed. Cir. 1996).
The regulation regarding new and material evidence was
amended. 38 C.F.R. § 3.156(a) (2004). This amendment
applies only to claims to reopen a finally decided claim
received on or after August 29, 2001. The appellant's
request to reopen his claim of entitlement to service
connection was filed prior to that date, in August 1991.
Therefore, the amended regulation does not apply.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In
determining whether evidence is new and material, the
credibility of the new evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim.
Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the
specified bases for the final disallowance that must be
considered in determining whether the newly submitted
evidence is probative. Id. Such evidence must tend to prove
the merits of the claim as to each essential element that was
a specified basis for that last final disallowance of the
claim. Id.
The May 1969 rating decision determined that while the
veteran had an episode of back pain during service, the
record did not include competent evidence of post-service
back pathology. Thus, in this case, to be new and material
the evidence would need to demonstrate a diagnosis of post-
service back pathology.
The evidence received since the May 1969 rating decision
includes various medical records showing diagnoses of
arthritis and degenerative disc disease of the lumbosacral
spine, as well as evidence that the veteran underwent lumbar
laminectomies during the 1990s. This medical evidence was
not previously of record, and it bears directly and
substantially upon the specific matters under consideration.
It is so significant that it must be considered in order to
fairly decide the merits of the claim. 38 C.F.R. § 3.156
(2001). Accordingly, the appellant's claim for service
connection for a back disorder is reopened.
ORDER
Service connection for Reiter's syndrome is denied.
Service connection for depression is denied.
New and material evidence not having been received to reopen
a previously denied claim of entitlement to service
connection for a bilateral foot disorder, that benefit is
denied.
New and material evidence having been received, the claim for
entitlement to service connection for a back disorder is
reopened.
REMAND
While the evidence is sufficient to reopen the veteran's
claim for service connection for a back disorder, it is not
clear whether any current back pathology is related to the
back pain noted during service in September 1967. Thus, a VA
physician should examine the veteran to determine the nature
and etiology of any current back pathology.
The record indicates that the veteran underwent spinal
surgery at Pioneer Hospital during the 1990s. The RO
requested records from that facility, however none were
obtained. The veteran has indicated in a written statement
that he has copies of records from that facility. He should
provide those copies.
Accordingly, the case must be remanded for the following
actions:
1. The RO should contact the veteran and
request that he provide copies of any
records in his possession of treatment or
surgery for a back disability from Pioneer
Hospital. All records obtained should be
associated with the claims folder.
2. Following the above, the RO should
schedule the veteran for an examination by
a VA orthopedist to determine the nature
and extent of all current back/spine
pathology. All necessary tests, including
X-rays, should be conducted and the
examiner should review the results of the
testing prior to completion of the report.
All back and/or spine pathology and
symptomatology should be noted. The
examiner should review the claims folder,
including this REMAND, the service medical
records, the December 1976 X-ray report,
the June 1997 neurological evaluation, the
September 1995 and February 2003 VA
outpatient treatment records, and any
records obtained from the veteran pursuant
to the above request.
The examiner is requested to provide an
opinion as to whether there is a 50
percent probability or greater that any
currently diagnosed back or spinal
pathology is related to the back pain
noted during service in September 1967.
The report of examination should include a
complete rationale for the conclusions
reached.
3. Thereafter the RO should readjudicate
the issue of entitlement to service
connection for a back disorder (on the
merits). If the benefit sought is not
granted the RO should furnish the veteran
and his representative a supplemental
statement of the case and an opportunity
to respond. Thereafter, if appropriate,
the case should be returned to the Board.
No action is required of the veteran until he is notified by
the RO; however, the veteran is advised that failure to
report for any scheduled examination may result in the denial
of his claim. 38 C.F.R. § 3.655 (2004). The appellant has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs